Skip to content


Nalla Karuppa Chettiar Vs. Iburam Saheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1897)7MLJ76
AppellantNalla Karuppa Chettiar
Respondentiburam Saheb
Cases ReferredSchibsby v. Westenholz L.R.
Excerpt:
.....resorted to, do..........find a.ny ground for holding that the defendant was constructively resident, or at the time of the suit, present within the jurisdiction of the kandy court. nor does the possession by the defendant of some immoveable property in kandy, give that court jurisdiction over him in matters of contract like the present. for in schibsby v. westenholz l.r., 6 q.b., 158 it was observed :-- we doubt very much whether the possession of property, locally situated in that country and protected by its laws, does afford such a ground. it would rather seem that, while every tribunal may very properly execute process against. the property within its jurisdiction, the existence of such property, which may be very small, affords no sufficient ground for imposing on the foreign owner of that property, a duty.....
Judgment:

1. The plaintiff sued in the Tanjore Subordinate Judge's Court in British India to recover certain sums under decrees passed in his favour by the District Court of Kandy in Ceylon. The defendant raised a number of pleas, but the Subordinate Judge found against him on all the issues and decreed the claim.

2. On appeal the District Judge tried three main questions, viz.--

(i) whether notice of the suit in the Kandy Court was so served on the defendant as to justify the British Indian Court in passing a decree on the judgment of the Foreign (Kandy) Court;

(ii) whether the Foreign Court had jurisdiction over the person of the defendant who was domiciled and resident in British India; and

(iii) whether the defendant was a minor when the judgment was given and whether, in consequence, the judgment was one which could be made the basis of a suit in British India.

3. On all these issues the District Judge decided in defendants' favour and, therefore, dismissed the suit.

4. The plaintiff now appeals on all the issues, decided against him.

5. We do not, however, think it necessary to discuss the first and the third of the above issues, as we are of opinion that the decision of the District Judge on the 2nd issue is right, and that the plaintiffs suit must fail on that ground, whatever the decision on the other issues might be.

6. The defendant was the chief partner in the firm of Iburam Saheb and Co., which carried on business in Kandy under the terms of a deed of partnership (exhibit A). The plaintiff was domiciled and Ordinarily resident in British India, but he visited Kandy once or twice and his family owned some immoveable property there in which, he claimed to have an interest.

7. The plaintiff was not even temporarily resident in Ceylon when the suits wore instituted in the Kandy Court or subsequently. The business was, under the terms of exhibit A, managed by one of the Other partners who lived in Kandy. When the suits were filed, summonses on the partners, including the defendant, were served on the resident partners.

8. The question which we have to decide is this.

9. Assuming that service of the notice of the suit on defendant s partner is sufficient service on defendant and assuming that defendant is entitled to no protection on the score of minority, had the Kandy Court jurisdiction in the above state of facts to pass a decree against the defendant's person?

10. It is conceded that for the present purpose the Kandy Court must be conceded to be a foreign Court. The 'Courts of British India will be guided in this matter by the same principles as are adopted by the Courts of England. The true principle on which the judgments of foreign Courts are enforced in England is that the judgment of a Court if competent jurisdiction over the defendant imposes a duty or obligation on. the defendant to pay the sum decreed which the English Court is bound to enforce, and consequently that anything which negatives that duty or forms a legal excuse for not performing it is a defence to the action (Schibsby v. Westenholz L.R. 6 Q.B. 155. In the case of Bousillon v. Bousillorfi 14 Ch. d. 351 Fry, L.J., referring to Schibsby. v. Westenholz and Copin v. Adamson L.R. 9 Exch. 345, explained the circumstances which have been held to impose upon the defendant the duty of obeying the dicision of a foreign Court. He said the Courts of this country consider the defendant bound where he is a subject of the foreign country in which the judgment has been obtained; when he was resident in the foreign country when the action began; where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued; where he has voluntarily appeared; where he has contracted to submit himself to the forum in which the judgment was obtained, and, possibly if Becquet v. MacGarthy be right, where the defendant has real estate within the foreign jurisdiction in respect of which the cause of action arose while he was within that jurisdiction.

11. If these tests are adopted in the present case, it will be seen that not one of them applies. It is, however, urged that the law as to the authority to be ascribed to foreign judgments is in course of development by means of judicial legislation and we are asked, on the analogy of Becquet v. MacCartay, to hold that the defendant by carrying on business through his partners at Kandy should be regarded as constructively resident there and as having impliedly bound himself to submit to the jurisdiction of the Court under the protection of which his business was carried on. We do not think that the current of decided cases will justify us in going so far. In Beoquet v. MacCarthy the defendant still held, at the time of the suit, a public office in the colony in which he was sued, and the cause of action arose but of, or was connected with it. His duties required him to be present in the colony though, in fact, temporarily absent. This case was stated in Don v. Lippmann 5 Cl. & F. 1, to go to the verge of the law and the Privy Council in the recent case of Sirdar Gurdyal Singh v. Rajah of Faridkote L.R. 22, IndAp, 171, were of the same opinion, and' stated that, if the case could not have been distinguished by the said special features from the case of any absent foreigner who, at some previous time, might have served the Colonial Government, they would have regarded the case as wrongly decided. In the present case, there was no obligation on the defendant to reside at Kandy, nor did he do so except for very short periods. The business was carried on by a resident partner who, by the fact of his residence, was liable to the Colonial jurisdiction, but we are unable to find a.ny ground for holding that the defendant was constructively resident, or at the time of the suit, present within the jurisdiction of the Kandy Court. Nor does the possession by the defendant of some immoveable property in Kandy, give that Court jurisdiction over him in matters of contract like the present. For in Schibsby v. Westenholz L.R., 6 Q.B., 158 it was observed :-- We doubt very much whether the possession of property, locally situated in that country and protected by its laws, does afford such a ground. It would rather seem that, while every tribunal may very properly execute process against. the property within its jurisdiction, the existence of such property, which may be very small, affords no sufficient ground for imposing on the foreign owner of that property, a duty or obligation to fulfil the judgment. The general law is laid down very clearly by the Privy Council in the ease of Sirdar Gurdyal Singh, the Rajah of Faridkote, in these words : All jurisdiction is territorial and extra territoriwn jusdi centi impuene non paretur. Territorial jurisdietioxi attaches (with special excepnions) upon all persons either permanently or temporarily resident within the territory while they are Within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within th,e territory, and it maybe exercised over moyeabtes within the territory; and in questions of status or succession governed by domicil, it may exist as to persons domiciled, or who when livirig were domiciled, within the territory. As between different provinces under one sovereignty, (e.g., under the Roman Empire) the legislation of the Sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign court ought to recognise against foreigners, who owe no allegiance or obedience to the power which so legislates.

In a personal action to which none of these causes of juris-diction apply, a decree pronounced in absentem by a foreign court, to the jurisdiction of which the defendant has not in any way submitted himself, is by International Law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the courts of every nation except (when authorized by special local legislation) in the country of the forum by which it was pronounced.

These are doctrines laid down by all the leading authorities on International Law; among others by Story (Conflict of Laws, 2nd Edition, Sections 546, 549, 553, 554, 556, 586), and by Chancellor Kent, (Commentaries, Vol. I, p. 284, Note C. 10th Edition), and no exception is made to them in favouring of the exercise of jurisdiction against a defendant not otherwise subject to it, by the courts of the country in which the cause of action arose, or, (in oases of contract) by the courts of the locus solutionis. In those oases, as well as all others, when the action is personal, the court of the country in which the defendant resides have power, and they ought to be resorted to, do justice.

12. We do not think that there are any special circumstances in the present case to take it out of the general rule that the plaintiff must sue in the court to which the defendant is subject at the time of the suit-a rule which is stated by Sir Robert Phillimore (Inter national Law, Vol. 4, 8. 891), and by the Privy Council in the case' already quoted to be at the root of all international, and of most domestic jurisprudence on this matter. That was the course which the plaintiff in this case ought to have followed if he desired a remedy against the defendant personally.

13. On the ground that the Kandy Court had no jurisdiction, the Lower Appellate Court rightly dismissed the suit. We, therefore, confirm the decree of that Court and dismiss the second appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //